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Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Complainant herein issued a Workplace Relations Complaint Form on the 5th of March 2018 and there are two issues referenced therein which are to be dealt with.

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 which section specifically allows an Adjudicator of the WRC to hear the allegation or Complaint of a contravention of Section 27. Section 27 expressly prohibits an Employer from penalising or dismissing an Employee who has acted in accordance with his or her perceived obligations as envisaged under the Safety, Health & Welfare at Work Act, 2005.

The hearing is conducted in the manner prescribed in Section 41 of the Workplace Relations Act 2015 and the Adjudicator can determine whether the Complaint of Contravention is or is not well-founded and make such direction as might be appropriate thereafter (as set out in Section 28 of the Safety, Health & Welfare at Work Act, 2005).

In Section 27(4 ) it is provided that:

“An Adjudicator shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the Complaint relates or such further period not exceeding 6 months as the Adjudicator considers reasonable””

The second issue relates to a Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014. Schedule 2 of the 2014 Act allows the WRC adjudicator having heard a Complaint in the manner prescribed in Section 41 to make a decision declaring whether Complaint was well founded and provides for the making of appropriate requirements in the aftermath of that declaration. Similar time limits also apply.

Summary of Complainant’s Case:

The Complainant is a long-standing Employee of the Respondent Company. The Complainant holds the trusted position of Supervisor therein. The Complainant says that some of her interactions with other Grades along whom she and her team work alongside have been fractious. The Complainant is aware that some of the Employees with whom she comes into contact have surreptitious cigarettes which is highly dangerous given the working environment on the Aircraft side of the Airport.

Summary of Respondent’s Case:

The Respondent vehemently denies any tolerance or blind eye turned to cigarette smoking. The Respondent is aware of the Complainant’s allegations and this was investigated insofar as it could be. The Respondent is unaware of any penalisation of which the Complainant complains in the six month period prior to the Complaints being made before the WRC.

Findings and Conclusions:

The Complainant has worked with the Respondent Employer since 1988. The Complainant is a Supervisor or Team Leader, and is primarily engaged in the task of directing a team of maintenance staff to clean out planes which have recently landed and which need to be prepared to take off again. I accept that this is a busy period on board a plane, as different teams are expected to perform different functions to ensure the safe and prompt turnaround.

The Complainant gave evidence of concerns she had with respect to illicit smoking amongst her colleagues. The Respondent asserted that there is a comprehensive no smoking policy in the workplace as required by law and I do not doubt that there is just such a policy. The Complainant makes the case that there are some employees who abuse this policy and that certain members of Management have turned a blind eye to this practise.

The Complainant appears to have raised the issue with her employer and by the 15th of June 2016 she had prepared a written Grievance on the matter. The Complainant’s Grievance was spread out over a five year period from 2011 to 2016. As well as the issue of illicit smoking in prohibited areas, the Complainant was also making allegations of insubordination and lack of support within the workplace. The Company had asked one of its own Business Intelligence Mangers (MD) to conduct an investigation into the various Complaints made, to determine whether there was any merit in the Complaints such that might trigger a further action being taken.

The Complainant was asked by MD to reformulate her Grievances so that she MD, could better understand what Complaint was being made against which member of the Respondent staff. In its initial presentation the Complaints made were found to be too generic. MD was looking for more concise allegations with clear facts and dates etc. I accept that, for reasons unexplained, MD did not follow up on this request for a considerable period of time but equally the Complainant did not complete the task she was asked to do in this regard. In January 2016, some 6 months after their first meeting, the Complainant was communicated with a number of times but failed to respond to MD. In any event, MD opted to conduct the investigation working with the material she had and invited the Complainant to attend for an investigation meeting as part of this process. The Complainant did not attend. As appropriate, MD conducted meetings with those individuals against whom the Complainant had already raised complaints – though these complaints remained sweeping in nature. The allegations made by the Complainant were universally denied by all those who stood accused by her. It is clear to me that a not inconsiderable amount of work has gone into the investigation conducted by MD but that the Complainant’s failure to further engage, clarify or partake meant that the investigation ultimately lost traction. In the end, MD had to signal that there was no basis for taking the investigation any further – per letter sent to the Complainant on the 19th of April 2017. The Complainant was fully on notice of what actions were being taken by MD and of the fact that the Complainant should and needed to be interviewed as part of the investigation process. The Complainant did not query MD final finding that “..there is no basis for taking this matter any further”.

In her evidence to me, the Complainant said she found MD to be dismissive and biased and that her investigation was cursory. Nothing shown to me in the course of the hearing tends to back up this assertion. In any event, the Complainant, had she had a difficulty in relation to the conduct of the investigation, had ample opportunity to make representation to the HR department or her Union or some other person in authority at the time that the investigation was being conducted. The Complainant simply did not engage and cannot now complain about the outcome of the investigation which she had initiated and then failed to engage with.

The Complainant gave evidence of two instances of what might be described as workplace insubordination on the 25th of June 2017 and the 6th of September 2017. Both incidents are noted to have occurred well after the collapse of the original investigation into the 2016 Grievance. These incidents appear to involve employees dismissing the Complainant’s (who is a Supervisor) efforts to give reasonable direction or reprimand as is her duty as a Supervisor. I accept that she was personally affronted by the perceived insubordination and to her mind she did not have Management support in this regard. No Grievance was raised though the Complainant clearly knew of the existence of that process within the Respondent’s comprehensive framework.

On the 5th of March 2018 the Complainant issued the within Workplace Relations Complaint Form asserting that she has been penalised for the making a complaint under the Safety Health and Welfare at Work Act 2005 and under the Protected Disclosures Act of 2014. The Respondent has declined to proceed with further Complaints seeking dispute resolution under the Industrial Relations Act 1969 which were in fact the issue of a previous WRC hearing at which the Complainant did not attend with no explanation ever being given.

I have been asked by way of preliminary issue to look at the time Limits which apply and to give consideration to the criteria to be met in making a Protected Disclosure.

The Respondent has referred me to the Safety, Health & Welfare at Work Act, 2005 and in particular to Section 27. In Section 27(4 ) it is provided that:

“An Adjudicator shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the Complaint relates or such further period not exceeding 6 months as the Adjudicator considers reasonable””

I am satisfied that insofar as any penalisation as defined in the Acts has occurred at all (which remains doubtful) I was not presented with any evidence of any penalisation having occurred in the period in the six months directly preceding this claim.

Regarding the issue of Protected Disclosures, I am not persuaded that a Protected Disclosure as envisaged under the Act has been made. There was certainly no attempt to follow the “Whistleblower and Good Faith Reporting Policy” which has been in operation in the workplace since 2015 and which was opened extensively to me (alongside the Just Culture and Non Punitive Reporting Policy) and about which the Complainant was fully aware. Having listened to the evidence I cannot find that the Complainant can reasonably believe that she has made a Protected Disclosure. In any event I also have no evidence of any penalisation.

I should note that the Respondent has vehemently denied it would take an issue such as smoking lightly given the nature of the work environment and I have no reason to doubt this assertion.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the Complaint of a contravention of the protections afforded by Protected Disclosures Act, 2014 to have no foundation.

I find the Complaint of a contravention of Section 27 of the Safety, Health & Welfare at Work Act, 2005 to be ill-founded.